A.S. Naidu, J.
1. The judgment and order of conviction dated 2-11-2002 passed by the learned Addl. Sessions Judge. F.T.C.-II s Cuttack, convicting the accused-appellant under Section 302, IPC and sentencing him to undergo R.I. for life in S.T. No. 461 of 2001 - is assailed in this Criminal Appeal.
2. The prosecution case in brief is that on 19-10-2000 at about 5.30 p.m. while one Prafulla Sarhal husband of the informant was proceeding to bazaar the appellant stabbed him by means of a knife near 'Kuliagada Chhak', thereby causing bleeding injuries on his person. It was alleged that for some time in past the appellant had forcible sexual intercourse with the informant on several occasions with a threat that he will kill her husband and children if she do not cooperate, so that he can keep the informant with him for all times. It appears that the informant had reported the matter to the village Punch and a meeting was convened. In the said meeting the appellant was cautioned not to repeat the nefarious activities. On the date of occurrence the accused-appellant all of a sudden stabbed Prafulla with a knife thereby causing grievous injuries on his body. Before Prafulla could be removed to the hospital he succumbed to the injuries.
3. On the basis of an F.I.R. lodged by P.W.1, the widow, at Salepur Police Station, police action was set to motion. The Investigating Officer on the basis of a report visited the spot, made inquest over the dead body, seized blood-stained clothes, sent requisition to the Scientific Officer, D.F.S.L., Cuttack to come to the spot and conduct scientific investigation, issued inquest report and arranged for post-mortem of the dead body. He also arrested the accused person. It is alleged that when the accused was in custody he disclosed with regard to the place where he had kept the knife i.e. the weapon of offence and as per such statement the same was seized. After completion of the investigation, charge-sheet was submitted under Section 302, I.P.C. in G.R. Case No. 582 of 2000 in the Court of the learned J.M.F.C, Salepur. On being satisfied that a prima facie case was made out learned Magistrate took cognizance of the offences and committed the case to the Court of Session.
The plea of the defence was of complete denial.
4. In order to establish its case, the prosecution got nine witnesses examined and exhibited several documents apart' from material objects.
On behalf of the defence no witness was examined.
5. After discussing the evidence meticulously learned Addl. Sessions Judge arrived at a conclusion that the prosecution was able to establish the guilt beyond all reasonable doubt and convicted the accused under Section 302, I.P.C. The said judgment and order of conviction as, stated earlier is assailed in this appeal mainly on the ground that the learned Addl. Sessions Judge failed to analyze the evidence on record in proper manner and arrived at a conclusion on superficial consideration of the evidence. It is further stated that the findings arrived at are based more on surmises and conjecturers, than analysis of cogent evidence. According to learned Counsel for the appellant in absence of any independent witness the learned Addl. Sessions Judge acted illegally in convicting the appellant.
6. All these submissions are strongly repudiated by learned Addl. Government Advocate. According to him the learned Addl. Sessions Judge has considered all the materials, discussed the evidence in extenso and the findings arrived at being just and proper, the same may not be interfered with.
7. To examine the veracity of the argument advanced before this Court by learned Counsel for both parties, this Court once again went through the evidence of all the witnesses. Perusal of the F.I.R. and other materials reveal that the accused-appellant was having extra-marital relationship with P.W.1 the wife of the deceased for quite some years. If was alleged that the appellant had threatened P.W.1 and coerced her for continuance of such relationship with him and on being frightened that her husband and children would be murdered, she succumbed to the illegal wishes of the accused-appellant. On the date of occurrence as would be evident from the evidence of P.W.1 her husband was proceeding towards the market and his son was riding Trolley rickshaw behind him. The accused appellant was walking in front of him. All of a sudden there was a shout from the son of P.W.1 to the effect that the accused had stabbed her husband. She went to the spot and found that her husband was lying on the ground in a pool of blood.
8. The only eye-witness to the occurrence was P.W. 2, the 14 years son of the deceased. He had clearly stated about the incident and had also faced the cross-examination. According to the said witness while his father and accused were walking together, all of a sudden there was an altercation among them arid being enraged the deceased took out a knife and stabbed his father indiscriminately on his body to which his father succumbed. The statement of said witness gets corroborated from the evidence of doctor who had conducted the post-mortem being P.W. 8. According to learned Counsel for the appellant on the basis of sole evidence conviction cannot be sustained but then law is well settled that even on the basis of a solitary evidence the Court can convict an accused provided the Court is satisfied that the evidence is trustworthy, reliable and does not suffer from any infirmity. In the case at hand on a reading of the evidence of P.W. 2, who is a boy of only 14 years, it appears that he had seen the occurrence and had given vivid description as to how his father was assaulted by the accused. The said statement also gets corroborated to certain extent with regard to prior enmity with her mother P.W. 1. P.W. 3 was another child witness. He was also travelling in the trolley rickshaw. He had stated that all of a sudden there was altercation between Prafulla and the accused. Of course this witness had not seen the assault part. According to him seeing the altercation, being frightened he ran to call P.W. 1 who had gone to the nearby temple. Analysis of the evidence further reveals that while in police custody the accused had given a statement which was recorded and marked as Ext. 11. The said statement reveals that not only he confessed about the guilt but also disclosed as to where he had kept the weapon of offence. On the basis of said statement the police recovered the weapon of offence. The Doctor who had conducted post-mortem also opined that the injuries might have been caused by such weapon. The statement leading to discovery can be accepted under Section 27 of the Evidence Act in evidence. Added to the aforesaid fact, it appears that the wearing apparels of the accused were, also seized and it contained human blood as would be evident from the Serologist Report-Ext. 16.
9. In view of the discussions made, above this Court is satisfied that the conclusions arrived at by the learned Addl. Sessions Judge does not suffer from any infirmity and the same are based on cogent and reliable, evidence. This Court, therefore, is not inclined to interfere with the said finding. However, it appears, that the accused is in custody for about nine years. That apart, evidence is available to reveal that there was ill-feeling between the deceased and the accused on the allegation that the accused was having illicit extra-marital relationship with the informant. The evidence of P.Ws. 2 and 3 clearly reveals that while proceeding on the road all of a sudden there was an altercation between the deceased and the accused and being enraged in the heat of passion without any premeditation took out a knife and indiscriminately stabbed Prafulla, thereby, causing his dear. In view of the aforesaid facts and circumstances this Court feels that ends of justice and equity will be better served if the order of conviction under Section 302 of I.P.C. is set aside and instead the appellant is convicted under Section 304, Part-II, I.P.C. and sentenced to the period of imprisonment already undergone by him. Before parting it is apt to say that the endeavour made by Mr. Soumendra Patnaik who was engaged by this Court as an Amicus Curiae in assisting this Court, is very much appreciated.
10. With the aforesaid modification the Criminal Appeal is disposed of.
S.C. Parija, J.
11. I agree.